NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-8462-11.
Faia & Frick, P.C., attorneys for appellant (Carmen R. Faia, on the brief).
Littler Mendelson, P.C., attorneys for respondent (William P. McLane, of counsel and on the brief; Neha Dalal, on the brief).
Before Judges Parrillo and Maven.
Plaintiff Brian Raab, a former employee of defendant Children's Place Retail Stores, Inc. (Children's Place), appeals from the February 7, 2012 order granting summary judgment in favor of Children's Place and dismissing his complaint filed pursuant to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We are satisfied that where discovery is not complete, and conflicting certifications indicate a genuine issue of material fact concerning plaintiff's termination date, granting summary judgment was not appropriate. Accordingly, we reverse and remand for further proceedings.
Upon reviewing an order granting summary judgment, we employ the same standard as the trial court and consider the evidence in the light most favorable to plaintiff in order to determine whether Children's Place is entitled to summary judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The facts adduced from the motion hearing record are as follows.
Plaintiff filed his complaint on August 26, 2011, alleging that his employment with Children's Place commenced on or about November 9, 2007, and that he was wrongfully terminated on August 28, 2009. In its motion for summary judgment dated November 18, 2011, Children's Place asserted that plaintiff's employment was terminated effective August 20, 2009, and that plaintiff failed to file his complaint within the two-year statute of limitations applicable to LAD cases, citing to Bolinger v. Bell Atlantic, 330 N.J.Super. 300');"> 330 N.J.Super. 300, 305 (App. Div. 2000). See Montells v. Haynes, 133 N.J. 282, 286 (1993) ("The statute of limitations for all claims asserted under the LAD is two years."). Children's Place submitted a certification from Francine Gattini, Director of Payroll, stating that the Associate Time Sheet showed that plaintiff's last work day was August 20, 2009; his last paycheck reflected all hours worked up to August 20, 2009; plaintiff's job history report shows that he was terminated on August 20, 2009; and by August 25, 2009, Children's Place had filled plaintiff's position as a stock supervisor.
In opposition, plaintiff, who is African American, claimed he was terminated on August 28, 2009, after complaining of racial discrimination in the workplace. Plaintiff averred that he was subjected to racially offensive comments and jokes, and the store manager "singled [him] out and picked on [him] because of [his] race." Further, he claimed he was unfairly disciplined based on his race, namely that he was placed on probation unjustifiably and his "evaluations were intentionally skewed." He asserted that he complained about the store manager's conduct to the district manager during a visit to the store, but to no avail. Rather, plaintiff stated that the district manager and store manager made arrangements to replace him prior to his actual termination.
Plaintiff also claimed that on August 28, 2009, when he reported to work, the store manager questioned him regarding "an incident that had occurred on the register about a week or more earlier." It was at this time that the store manager "fired" him and told him to leave the premises. Based on the foregoing, plaintiff argued that his termination date was August 28, 2009. Furthermore, plaintiff argued that the court should not rely on Gattini's certification as it was not based on her personal knowledge, contrary to Rule 1:6-6.
The judge granted summary judgment to Children's Place finding that (1) the employment records established that plaintiff was terminated on August 20, 2009; (2) the running of the statute of limitations for a LAD claim is triggered on the last day for which the employee is paid; and (3) plaintiff failed to file his complaint timely.
On appeal, plaintiff contends that the trial court erred in finding that the complaint was not filed within two years from the accrual date of the cause of action; accepting as an undisputed fact an uncertified and unauthenticated computer printout of alleged company records; and granting summary judgment when discovery was yet to be completed and when a genuine issue ...